Second Amendment

Post-Newtown "Assault Weapon" Laws in Connecticut, New York Upheld

Second Circuit finds "intermediate scrutiny" of laws impacting Second Amendment allows full ban of certain weapons to pass constitutional muster.

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The U.S. 2nd Circuit Court of Appeals today upheld various recent gun regulations passed in both Connecticut and New York against Second Amendment challenges. The decision combines appeals in New York State Rifle and Pistol Association el al. v. Cuomo, Schneiderman et al. and Connecticut Citizens Defense League et. al. v. Malloy, Kane et al.

The full decision

Summations and excerpts and comments shall commence herewith.

First, the root of the issue:

The New York and Connecticut laws at issue prohibit the possession of certain semiautomatic  assault weapons" and large?capacity magazines. Following the entry of summary judgment in favor of defendants on the central claims in both the Western District of New York (William M. Skretny, Chief Judge) and the District of Connecticut (Alfred V. Covello, Judge), plaintiffs in both suits now press two arguments on appeal. First, they challenge the constitutionality of the statutes  under the Second Amendment; and second, they challenge certain provisions of the statutes as unconstitutionally vague.

Judge Jose Cabranes thinks the challenged laws are (mostly) just fine:

the core provisions of the New York and Connecticut laws prohibiting possession of semiautomatic assault weapons and large?capacity magazines do not violate the Second Amendment, and that the challenged individual provisions are not void for vagueness. The particular provision of New York's law regulating load limits, however, does not survive the requisite scrutiny. One further specific provision—Connecticut's prohibition on the non?semiautomatic Remington 7615—unconstitutionally infringes upon the Second Amendment right.

What the challenged New York law does:

New York enacted the Secure Ammunition and Firearms Enforcement Act (SAFE Act) on January 15, 2013. The SAFE Act expands the definition of prohibited "assault weapons" by replacing the prior two?feature test with a stricter one?feature test.    As the name suggests, the new test defines a semiautomatic firearm as a prohibited "assault weapon" if it contains any one of an enumerated list of military?style features, including a telescoping stock, a conspicuously protruding pistol grip, a thumbhole stock, a bayonet mount, a flash suppressor, a barrel shroud, and a grenade launcher…..

The SAFE Act also bans magazines that can hold more than ten rounds of ammunition or that can be readily restored or converted to accept more than ten rounds. Although New York had restricted possession of such magazines since 2000, the SAFE Act eliminated a grandfather clause for magazines manufactured before September 1994.

Even with the 10 round capacity, the SAFE Act made it illegal under most circumstances to put more than seven actual rounds in your magazine.

The post-Newtown Connecticut laws also challenged in these cases did most of the same things the New York law did, plus "additionally bans 183 particular assault weapons listed by make and model, as well as 'copies or duplicates' of most of those firearms."

The plaintiffs in the original cases think those laws unduly burden their Second Amendment rights. Lower court judges in both cases sort of agreed that they did, but that under "intermediate scrutiny" those burdens did not rise to the level of a constitutional violation the court would halt.

For some past discussion of how the question of "scrutiny" effects Second Amendment cases, see this and this.

The Appeals Court judge notes that dominant Supreme Court doctrine about the Second Amendment didn't make his decision perfectly clear:

Heller offered little guidance for resolving future Second Amendment challenges. The Court did imply that such challenges are subject to one of "the standards of scrutiny that we have applied to enumerated constitutional rights," though it declined to say which, accepting… that many applications of the Second Amendment would remain "in doubt."

The judge grants the weapons and parts at issue do fall under the general purview of Heller: "the assault weapons and large?capacity magazines at issue are 'in common use' as that term was used in Heller."

Even so, he's confident most of the challenged laws here are OK. First, these so-called "assault weapons" are not as commonly used for self defense in the home as the handguns at issue in Heller. Also:

No "substantial burden" exists—and hence heightened scrutiny is not triggered—"if adequate alternatives remain for law?abiding citizens to acquire a firearm for self?defense."….

both New York and Connecticut ban only a limited subset of semiautomatic firearms, which contain one or more enumerated military?style features. As Heller makes plain, the fact that the statutes at issue do not ban "an entire class of 'arms'" makes the restrictions substantially less burdensome. In both states, citizens may continue to arm themselves with non? semiautomatic weapons or with any semiautomatic gun that does not contain any of the enumerated military?style features. Similarly, while citizens may not acquire high?capacity magazines, they can purchase any number of magazines with a capacity of ten or fewer rounds. In sum, numerous "alternatives remain for law?abiding citizens to acquire a firearm for self?defense.

Thus, Judge Cabranes applies "intermediate scrutiny" to the laws and finds that if he thinks the legislature has a substantial interest in public safety, and that they have "drawn reasonable inferences based on substantial evidence" that their laws would improve public safety, then the bans are constitutionally OK.

The Judge believes it sufficiently proven that those banned weapons are more deadly when used in crimes, and indeed are "disproportionately used in crime, and particularly in criminal mass shootings like the attack in Newtown. They are also disproportionately used to kill law enforcement officers." (I do not know that the actual facts support this conclusion.) The actual facts certainly do not support that conclusion, certainly not the "disproportinately used in crime" part, and while it seems in at least one year surveyed semiautomatic handguns were used very often in police killings, not the sort of "assault weapons" at issue in these laws.

However, the Judge does agree that the New York law commanding no more than seven rounds in a magazine fails "intermediate scrutiny" muster:

we cannot conclude that New York has presented sufficient evidence that a seven?round load limit would best protect public safety. Here we are considering not a capacity restriction, but rather a load limit. Nothing in the SAFE Act will outlaw or reduce the number of ten?round magazines in circulation. It will not decrease their availability or in any way frustrate the access of those who intend to use ten?round magazines for mass shootings or other crimes. It is thus entirely untethered from the stated rationale of reducing the number of assault weapons and large capacity magazines in circulation. New York has failed to present evidence that the mere existence of this load limit will convince any would?be malefactors to load magazines capable of holding ten rounds with only the permissible seven.  

The judge found none of the restrictions unconstitutionally vague, even though one included a misspelling of "muzzle brake" as "muzzle break," but did find one specific Connecticut ban on one specific non-semiautomatic weapon, Remington 7615, to violate the Second Amendment and overturned it.

For the background on the legal arguments at stake in Heller and beyond, see my 2008 book Gun Control on Trial.

For what its worth, the SAFE Act at issue in New York is being widely ignored when it comes to regsitering previously legal but now illegal-minus-registration weapons.

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  1. Of course, the right to keep and bear arms is a fundamental constitutional right, and thus any challenge to it should be held to strict scrutiny. Judges rewrite law, news at 11.

  2. They just upheld a law no one obeys. Neat.

    1. Creating thousands of criminals out of thin air! It’s… magic!

      1. More laws, more criminals, more jobs!
        We live in a golden age!

  3. “The law” isn’t a bullshit religion with gatekeeper priests determining what it *actually* means or anything, no siree. No, look at how logical and sensible and totally not rule of man it is. Can’t you see it?

  4. I don’t get how this is supposed to prevent sickos from getting their hands on a weapon and using it.

    1. It’s not supposed to do that. It’s supposed to punish gun owners.

    2. Unless CT wants to put up a border fence and search every car entering the state, it definitely won’t.

      1. Did any of you guys just hear that giant sucking sound? That was the sound of the few remaining firearms manufacturing companies foolish enough to keep try to do business in Connecticut finally biting the bullet and moving to a freer State.

    3. It doesn’t. All of these laws that get proposed after “mass shootings” (aka a quiet week in Baltimore) don’t have any connection to the events that transpired. The dead bodies are just the pretext.

      1. It’s like the confederate flag thing after Dylan Roof, it had absolutely nothing to do with the shooting, but the left always hated that flag, and they were willing to use that shooting as ammunition to get it taken down.

        The left hates guns, and gun owners, they hate gun culture, and will use whatever they can to attack it. They know none of these gun control measures will work, but thats ok because it’s not about that.

        1. But it was a crisitunity! We can’t let those go to waste.

        2. The left hates guns, and gun owners, they hate gun culture, and will use whatever they can to attack it.

          It’s a little more complicated than that. Here is a really good article on the subject by a psychiatrist:

          http://jpfo.org/filegen-n-z/ra…..efense.htm

          1. That’s a good read.

          2. I don’t think the projection usu. operates the way he thinks. It’s not some unconscious process. Rather, those people will usu. tell you that they frequently want to kill people, and they don’t think that’s some forbidden thought, but quite a normal one. In fact people express it here a lot, viz. chipping wood. The syllogism goes like this:

            I’m a reasonable person.
            Yet, I frequently want to kill people.
            The only reason I haven’t killed them is that I lacked the means at the time.
            Most people are reasonable (at best).
            Therefore they’re like me.
            Therefore they frequently want to kill people.
            The only reason they don’t is that they lack the means at the time.
            Therefore depriving reasonable people of the means to kill saves lives.
            Unreasonable people are even worse, so ’nuff said.

            1. Y’know, I was wondering if this works in reverse the other day. I can see people who are abnormally violent feeling like guns need to be banned because if they had them, they’d shoot up a pre-school, but it makes me wonder if I, being non-violent, give too much benefit of the doubt to others? Maybe those maniacs really do need to be kept away from firearms!

  5. “One further specific provision?Connecticut’s prohibition on the non?semiautomatic Remington 7615?unconstitutionally infringes upon the Second Amendment right.”

    So, pump action “assault rifles” are A-OK apparently. Boy do i feel safer now.

    I always thought Troy was smart getting ahead on this

    http://troydefense.com/pumpactionrifle/

    1. Now I want one of those too. And I want to know what “medieval muzzle brake” is.

  6. It’s not like the Constitution means anything after all. It’s just a suggestion…

    Except the parts that justify government’s power over people of course, those are set in stone and inviolable…

  7. Remington 7615,

    But it’s black and has a curved magazine! Aaaah!

    Now I want one of those. Pump action rifles are the shit.

    1. +38/40

    2. But it’s black and has a curved magazine! Aaaah!

      Taken straight from a cuckservative website, I have no doubt.

  8. Is there any amendment more shat upon by lawmakers and the courts than the 2nd?

    Even with “Free Speech Zones” I still can’t think of one.

    1. They’ve raped the 4th pretty good.

      1. Yeah I think a pretty strong argument could be made that they’ve virtually killed the 4th amendment.

    2. 9th and 10th were dead and buried long ago.

  9. “military?style features, including… a thumbhole stock

    whut

    1. So the thumbhole stock that was invented to comply with previous ridiculous gun control laws aimed at purely aesthetic features is now vorbotten also? Does this mean they should revert back to pistol grips?

      1. “Does this mean they should revert back to pistol grips?”

        The below-mentioned “pretzel gun” is an example of what happens when the law ‘bans’ any rational design features.

    2. Yeah, the only “military style” rifles I’ve seen with a thumb hole stock are certain types of sniper rifles, which are typically bolt action, not semi-auto. Proving once again that these assclowns have no idea what they’re doing and are pretty much just lashing out at any gun that looks scary and/ or cool.

      1. They will support any gun law no matter how mindnumbingly stupid it is. Propose a law that outlaws certain colors for guns and they will support it. Make it a law that bans guns from your own bathroom, and they will support, make a law that says AR-15s now must be renamed “Killy McKilling machines” and they will support it.

        You can not invent a law too stupid for these people to support. Propose a law that makes it’s illegal to use cheese sticks as ammo, and these dumbfucks will still support it.

        1. Killy McKilling Machines would be an excellent name for a gun store.

    3. Is there a single standard-issue military rifle that has a thumbhole stock?

  10. “the statutes at issue do not ban “an entire class of ‘arms'” makes the restrictions substantially less burdensome. “

    Your honor, lets take a look at what a rifle has to do to be “legal” in NYstate

    If that resembles a pretzel, its because its weaving its way around stupid laws

    1. So, NY could pass a law prohibiting the criticism of government officials on the internet, and that would be fine because:

      the statutes at issue do not ban “an entire class of ‘arms communications technology‘” makes the restrictions substantially less burdensome

      Or, I suppose, the could outlaw anything other than single-shot firearms, or even blackpowder muzzleloaders, and that would also by Constitutional.

      My faith in SCOTUS reversing this decision is right around the 20% mark. On a good day.

  11. Remind me again, what do the words “shall not be infringed” mean?

    1. They mean “shall require a license, prole.”

  12. As far as I know the military still uses Remington 700s. Is a manual bolt considered a “military style feature”?

    1. Shhh don’t give them ideas.

    2. Didn’t United States v. Miller specifically argue that short barreled shotguns were not appropriate for military use, and therefore not protected by the Second Amendment?

      So which is it?

    3. Didn’t United States v. Miller specifically argue that short barreled shotguns were not appropriate for military use, and therefore not protected by the Second Amendment?

      So which is it?

      1. Damn, this is my first time affected by squirrels. wtf.

      2. No, it said that nobody had presented any evidence that sawed-off shotguns are related to having a well-regulated militia, so they couldn’t say if they were protected by the 2A.

  13. “Judge Cabranes applies “intermediate scrutiny” to the laws and finds that if he thinks the legislature has a substantial interest in public safety, and that they have “drawn reasonable inferences based on substantial evidence” that their laws would improve public safety, then the bans are constitutionally OK.”

    Does the judge have to determine whether the latter “reasonable inferences based on substantial evidence” are in fact Reasonable, and the evidence Substantial? or does the state merely need to assert that its gone through some process that makes any test of their claims un-necessary?

    because, specific to the issue of the bullshit “military-style features”…

    ….i sincerely doubt anyone has made any “reasonable” argument that Barrel Shrouds or Thumbhole Stocks are a threat to public safety… and i don’t think any evidence exists showing that Bayonets are far too often employed to defeat the body-armor of public-safety officers…

    … in short = where exactly is the “scrutiny” taking place? It appears to me that the judge is simply rubber-stamping the insane assertions made by the state and providing no actual review of their claims to establish whether they are ‘reasonable’ and the evidence used ‘substantial’

    1. I’m going to go with the rubber-stamping thing.

    2. SHALL NOT BE INFRINGED doesn’t require much scrutiny Judge.

  14. http://www.mediafire.com/view/b0u3ppwel9aj7ln

    Screw 3d printing. All you need is some square tubing, barrel stock, an angle grinder and a welder.

    WE NEED COMMON SENSE TUBING REGULATION

  15. The Judge believes it sufficiently proven that those banned weapons are more deadly when used in crimes, and indeed are “disproportionately used in crime, and particularly in criminal mass shootings like the attack in Newtown.

    Does it matter what he believes, when it’s demonstrably false?

    Unless he by “disproportionately used in crime” mean that they are used less than other types of guns.

    1. Yeah. None of those things are true at all. Automatic rifles aren’t even used in many mass shootings. And certainly aren’t used much in any other kind of crime.

      1. IIRC, automatic weapons have been using in murders only twice since Prohibition ended.

    2. This is what I don’t get. I thought appeals weren’t supposed to be trials on the facts. So now the judge is ruling on facts not in evidence, in fact with no opp’ty to present evidence because he’s not looking at evidence but only relying on legislative hearsay.

  16. You gun-nuts sicken me. Obviously we just need to confiscate every single gun in America and make it illegal to make, own, or sell one after a certain date.

    But I totally hate the cops and want them to respect black people’s lives.

    /Tony

    1. If we ban guns maybe the cops will find it in their hearts to protect us all

  17. Have they banned these yet?

    Guy creates handheld railgun with a 3D-printer
    http://www.engadget.com/2015/1…..d-railgun/

    1. A true railgun isn’t even a firearm, so laws which apply to “firearms” wouldn’t apply to it at all.

      Does it have the shoulder thing that goes up? How many magazines will fit in the clip?

      1. A true railgun isn’t even a firearm

        I fully expect the “railgun loophole” to be “closed” at some point. Cheered on by useful idiots in the tech community, no doubt.

      2. And pot and cocaine aren’t narcotics, but it doesn’t stop the DEA from calling them that.

  18. Here’s to CT and NY gun owners continuing to ignore this bullshit. They’re setting an example for the rest of the country if and when the Dems stay in the White House.

  19. the core provisions of the New York and Connecticut laws prohibiting possession of semiautomatic assault weapons and large?capacity magazines do not violate the Second Amendment

    I like to think that he laughed himself to tears after writing that sentence.

    If the 34th Amendment were “The right of the people to stand on one leg shall not be infringed,” we would see single-leg standers arrested in droves before the ink was dry.

    1. We meant the other leg, sucker!

  20. a telescoping stock, a conspicuously protruding pistol grip, a thumbhole stock, a bayonet mount, a flash suppressor, a barrel shroud, and a grenade launcher

    None of which, by themselves, have ever killed anyone. (Even the last one requires grenades, which I believe are illegal, and since bayonets are legal, the mount is nearly irrelevant.) This is magical thinking, like trying to reduce street racing by banning racing stripes.

    1. Welp, God’s Own M1A (currently resting in splendor in the Dean Gun Safe) manages to tick off the following:

      a telescoping stock,
      a conspicuously protruding pistol grip,
      a bayonet mount (pretty sure),
      a barrel shroud.

      Tell me how, per Miller, a firearm that was issued to the military and is still in limited use, isn’t covered by the 2A, even assuming that the prefatory clause has some relevance in requiring that a given weapon have a recognized military use (or whatever).

  21. I hope at the same time they had the foresight to ban writing numbers on the door of your car, because the number is what magically changes your sputtering little Ford Focus into a high performance race car.

    1. What’s this about the Folk Fordus?

  22. So, what’s next? Supreme Court or is it time to start selling off the AR-15s I may or may not own while thy’re still legal?

    How the fuck are what are clearly infringements not infringements? Judge Cabrenes is a Goddamned moron who could certainly benefit from some English lessons.

  23. The decision says killing all the Branch Davidians in Waco was constitutional and justified, right?

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